Construction Law Updates
The Payment Schedule
No. 1105 – 1 November 2011
This Update discusses the necessary content of a Payment Schedule, the document that must be sent within 15 days in response to a Payment Claim, unless intending to pay in full.
The Payment Claim
No. 1104 – 29 October 2011
10 December 2011 marks a watershed moment in South Australia for the construction industry. On that day, the Building and Construction Industry Security of Payment Act 2009 (SA) comes into effect. This is the first in a series of updates that will deal with the new legislation.
Superman with two hats
No 1102 – 25 October 2011
Wunda Projects Pty Ltd v Kyren Pty Ltd discusses the difficulties created for a principal employing a Superintendent who is also involved in the management of the project.
Title fight
No. 1103 – 1 June 2011
Since the introduction of the Torrens title system, the certificate of title held by the owner of land has been considered as the final evidence of the owner’s rights to their land. There are limited exceptions set out in the Real Property Act 1886 (“the Act”) but most purchasers of land would consider that the title they obtain from the land agent can be relied upon without further investigation.
Radioactive good faith
No. 1101 – 1 February 2011
In Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd the West Australian Court of Appeal has clarified the current meaning of negotiating in “good faith”. It is not uncommon for parties considering entering into a significant commercial enterprise to initially agree a Memorandum of Understanding (“MOU”) on the basis that the MOU attempts to lock in the deal before they agree on all the terms.
Buyer Beware
No. 1005 – 1 October 2010
In a recent decision of the Supreme Court of South Australia, the Court was asked to decide whether the builder would be liable to the subsequent owner even if the defects complained about would have been apparent at the time of purchase from the original owner.
Blame it on the subbie
No. 1004 – 1 September 2010
A recent decision of the NSW Supreme Court (Owners Corporation v Dasco Constructions) raises the interesting question whether residential builders are liable to subsequent owners for defective work performed by their subcontractors.
Demolish or rectify?
No. 1003 – 1 June 2010
If a builder has made errors that cannot be completely removed without demolishing the works and starting again, does it have to demolish and rebuild or can compensation be assessed in some other way? The Full Court of the Supreme Court recently examined this question in Unique Building Pty Ltd v Brown.
Terminating Trouble
No. 1002 – 1 March 2010
The termination of a contract is a serious step with long term implications. Minor differences in the form and substance of the documents used in termination can lead to substantially different legal outcomes.
How will the New Law on progress payments work?
No. 1001 – 1 February 2010
Late last year, the South Australian Parliament passed the Building and Construction Industry Security of Payment Bill 2009 (the “New Law”). The New Law dramatically changes the ground rules on timing and liability for responding to payment claims in the construction industry.
Building and Construction Industry Security of Payment Act 2009 (SA) Newsflash
No. 907 – 5 December 2009
This newsflash contains key points about new legislation which will have a major effect on payments in the construction industry. Under the new law, contractors, subcontractors and suppliers will be entitled to payment of what they claim, regardless of whether it is really due, if the paying party does not get the newly required paperwork in on time.
Who is liable when one subcontractor negligently injures another?
No. 906 – 1 October 2009
Recently, in Leighton Contractors v Fox the High Court of Australia revisited the issue of liability of the head contractor for injury to an independent subcontractor caused by the negligent conduct of another subcontractor.
Is inserting “nil” enough to avoid delay damages?
No. 905 – 1 September 2009
Recently, in J-Corp v Mladenis the WA Court of Appeal was asked whether a clause limiting liquidated damages to “NIL” prevented the owners from claiming general damages for delay when the builder ran late finishing their home.
Can an owner successfully sue a subcontractor in negligence?
No. 904 – 1 August 2009
A recent Victorian Supreme Court decision illustrates the dilemma faced by subsequent owners of a defective building when a subcontractor is thought to have negligently caused damage.
More than the contract price?
No. 903 – 1 July 2009
A party who breaches a contractual condition may render itself vulnerable to a claim that it has repudiated the contract. When a party is issued with a notice to “show cause” as to why a contract should not be terminated, it should seek legal advice and act accordingly.
The Dream Appeal
No. 902 – 15 February 2009
In Update 805 we reported on a Supreme Court of South Australia decision in relation to a pre-purchase building inspection report and noted that leave to appeal had been granted. The Full Court recently handed down its decision on the appeal.
Filling in the contract form
No. 901 – 1 February 2009
Standard form contracts are widely used in the construction industry because they provide a ready to use and economical written contract that is familiar to the parties. Recently, in Sizer v Squarcini, the WA Supreme Court examined how to interpret the standard form contract known as AS2124-1992 where the parties had used inconsistent language when completing the contract.
It may sound unfair but it’s the law
No. 808A – 15 December 2008
Where companies are in their sunset period, it is not acceptable to apply pressure to jump the payment queue. The law seeks to distribute the remaining assets fairly to all creditors.
Summary of the law relating to Unfair Preferences
No. 808 – 1 December 2008
When a company makes a payment shortly before it is placed into liquidation, the liquidator may in certain circumstances claw back that payment for the benefit of creditors generally. Such a claim brought by a liquidator is called an “unfair preference” claim.